Agency for International Development V. Alliance for Open Society International: An Alternative Approach to Aid in Analyzing Free Speech Concerns Raised by Government Funding Requirements *

Article excerpt

Introduction

In 2013, the Supreme Court struck down a requirement that nongovernmental organizations combating HIV/AIDS must explicitly oppose prostitution to be eligible for government funding through a HIV/ AIDS program created in 2003,1 a program commonly referred to as the Leadership Act. Congress imposed this restriction as part of this "comprehensive" program to address HIV/AIDS, in part, by eradicating prostitution throughout the world.2 The Court found that the requirement violated the right to free speech because an organization could be ineligible for certain funding due to its beliefs regarding the legalization of prostitution.3

This Note proposes a new approach to analyzing speech requirements imposed for potential recipients to be eligible for federal funding: the government should be allowed to enforce any such speech requirements as a condition for federal funding as long as the potential recipient has other opportunities to engage in that speech. This view protects the government's interest in ensuring that its money is spent in a manner that is not only in accord with Congress's purpose for the program but that also protects the public's free speech interest in hearing a multitude of viewpoints.

In discussing this new approach to analyzing speech requirements imposed on potential recipients for federal funding, this Note focuses heavily on the Court's recent decision in Agency for International Development v. Alliance for Open Society International.4 While this new approach would be applicable to all cases in which Congress imposes some speech requirement as a condition for federal funding eligibility, Alliance for Open Society International provides a good framework-and one of the more recent examples-of how this new approach would work.

Part I of this Note summarizes basic background information regarding First Amendment jurisprudence on free speech and government conditions on monetary grants. Part II examines the Supreme Court's decision in Alliance for Open Society International, explaining the majority's (and the dissent's) reasoning in the case. This Part also includes a discussion of the background and Congressional intent behind the Leadership Act. Part III criticizes the decision and examines an alternative approach to considering freedom of speech claims in circumstances where an organization claims the government violated its right to free speech by requiring the organization to affirm a particular belief.

I. The Right of Free Speech Can Restrict Congress from Imposing Restrictions on Government Funding

Under the First Amendment freedom of speech guarantee, Congress cannot pass a law "telling people what they must say."5 Nonetheless, in some contexts, the government can impose "a condition on the receipt of federal funds" that requires an individual (or an organization) to engage in certain speech under the Spending Clause.6

Congress's ability to condition funds on an individual engaging in particular speech is limited: the requirement can become an "unconstitutional burden" on the individual's free speech rights.7 The line between what is permitted and is not permitted is "hardly clear"8-in part, because the Supreme Court has never defined that line and gives contradictory rationales for the permissibility or impermissibility of such restrictions.9

II. Agency for International Development v. Alliance for Open Society International

Subpart A will discuss the background of the Leadership Act at issue in Agency for International Development v. Alliance for Open Society International. Subpart B discusses Congress's rationale for the pledge requirement that the Supreme Court subsequently struck down. In subpart C, the Note examines the private party's reasons-both from a policy standpoint and from a constitutional standpoint-for opposing the pledge requirement. Subparts D-F discuss the case itself and the reasoning of the Supreme Court.